BRADLEY v. HOWELL.
No. 29312.
Division B. Supreme Court of Mississippi
April 20, 1931.
133 So. 660
Reversed and remanded.
The contract in this case is so crudely and obscurely drawn, is so beset with ambiguities and uncertainties, in respect to the determinative issue here involved, that we cannot rest with confidence upon an interpretation in favor of either of the parties on that issue. The burden was upon appellant, as the complainant in the trial court, to establish his right to relief both on the facts and the law. He failed to convince the chancellor that the contract was such as to entitle him to relief, and, since the ambiguities and uncertainties of the contract are such that we cannot say with the requisite assurance that the chancellor was wrong, it is not permissible, under general rules, to reverse.
Nor can we see that the result would be changed by the evidence of the surrounding facts and circumstances, attending the execution of the alleged contract. So far as pertinent and dependable, these facts would give about as much comfort to one side as to the other. We do not believe there is substantial reаson to anticipate that justice would be enlightened by a further pursuit of this litigation, and we shall therefore let the decree be affirmed.
Affirmed.
Griffith, J., delivered the opinion of the court on suggestion of error.
There are, in effect, two distinct cases involved in this appeal. Our original opinion (133 So. 660) dealt only with the first of them, and as to that case we adhere to that opinion. Appellant earnestly complains that, in our affirmance of the decree as to that case, we have disregarded the familiar doctrine that, when a contract is ambiguous or uncertain in its written terms, explanatory evidence will be received by way of all the pertinent surrounding facts of its execution and of its subsequent performance so as thereby to ascertain from all those extrinsic facts the probable intention of the parties. This ancient principlе was not overlooked by us nor by the chancellor; but the rule adverted to is to be applied always cautiously by the courts, so that, when evidence of the character mentioned is received, it shall be such as to disclose clearly to the court that the evidence is usаble and useful strictly to ascertain what was intended by the contract as actually made by the parties, not that said evidence may be availed of as an indirect means whereby the court may make a contract for the parties or insert therein some obligatory feature upon which the minds of the parties have never met. The province of courts in respect to contracts extends not a single step farther than the enforcement thereof as made by the parties, and courts must be careful that they go no farther. If the court should fail in enforcement, it would be only failure or omission; but, if upon any procedure or pretext the court should go farther and make a contract between parties which they themselves never made or agreed upon and thereupon enforce the same as made by the cоurt, this would be oppression.
Thus it is that the extrinsic evidence to interpret what the parties have put in writing must be something upon which the court can safely rely; the character of that
Upon our examination of the contract we were, and are, of the opinion that, in respect to the litigated issue, the contract is obscure, ambiguous, and uncertain, and that the chancellor was in error in his stated conclusion in that particular respect. It follows therefrom that the chancellor was also in error in the final exclusion of the said extrinsic evidenсe. But our duty here would not be performed, if, when technical error is shown by a record, we were thereupon to reverse without mature consideration whether the error is substantial, and substantially prejudicial to appellant. Consequently, as was our duty, we carefully examined all thе aforesaid evidence of the surrounding facts and circumstances and of the subsequent performance and came to the conclusion, which we now repeat—keeping always in view the caution that such evidence is available only and no farther than for a definite interpretation and not for the making of a contract—that the said evidence was not of such cogent or determinative character as to throw any dependable light upon the meaning of the contract in respect to the litigated issue; whence it follows that the
When on appeal, especially from trials by the chancellor, complaint is made of the exclusion of evidence, it must be shown that the relevant probаtive force of the excluded evidence is such that, if admitted, it would be materially effective towards the production of a different result; otherwise there would be no real or practical use for the excluded evidence. As more particularly concerns the exсluded evidence, we do not understand that appellant much contends in his suggestion of error against our view of the value of that evidence as it presently stands in this record; but rather that what he insists upon is that the decree be reversed and the cause remanded for a new trial, so that he may have the opportunity to introduce further and more persuasive testimony which he says “can be produced without any trouble if the case is reversed and the trial court instructed to hear such testimony.”
But what that further and more persuasive testimony is, or will be, is not specifiсally shown by the record, nor precisely indicated therein, so that the court may be thereby officially informed whether the said proposed evidence would be pertinent and effective. It is not enough, however sincere it may be, to assert in a brief or in a suggestion of error that said additional evidence exists and can be produced. This question was reviewed at some length by the court in Miss. Cent. R. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, and it was there reaffirmed that, when a party seeks a reversal because of excluded testimony, he must either place the witness on the stand, ask the questions, and have the answers made of record, or else the witnesses must be presented and there must be a specific statement of what the answers or testimony of these witnesses would be if allowed, so that the court may have, and in the record itself, something far more than genеralities upon which to determine
We have said that this appeal involves in effect two distinct cases. Turning now to the second of them: About a year аfter all the pleadings had been closed in the first case, and after that case had for some time been ready for final hearing, the complainant filed in the said cause, without leave of the court, what was termed by complainant as his amended bill. This alleged amendment was of a wholly separate and distinct contract and transaction depending upon entirely different facts, and wholly disconnected from those involved in the original bill; it was not in any respect germane to the original bill, and, moreover, it involved a law action, pure and simple, not а matter in equity. It involved a contract by which appellee was to saw certain timber belonging to appellant, and was to deliver to appellant the lumber therefrom at market prices, and in respect to which appellant claims a balance due him on aсcount of advances made to appellee and which had not been fully absorbed by lumber deliveries. It is true that there was an account of some length exhibited with the said so-called amended
Clearly therefore, and for three reasons, the chancery court was correct in declining to entertain the so-called amended bill: First, it was filed in violation of the statute, section 393, Code 1930, which requires leave of the court after defendants have answered to the original bill; second, it was not germane to the original bill, but was of an entirely new, different, and distinctly separate case; and, third, it proposed a law litigation without a single feature of equitable cognizance. And all this was so clear that wе did not deem it necessary to take any notice of it in our former opinion. It was not suggested to the trial court, when the demurrer to the so-called amended bill was sustained, that the said amendment should be treated as anything else than what it was named by the pleader, that is, an amended bill; or that any action should be taken on it other than that usual to an amendment which is disallowed and correctly so; and hence the court took the usual action and dismissed it.
So ordered.